Edwards v. Hoxworth

Full title: EDWARDS v. HOXWORTH

Court: Springfield Court of Appeals, Missouri

Date published: May 15, 1953

258 S.W.2d 15 (Mo. Ct. App. 1953)

Opinion

No. 7136.

May 15, 1953.

APPEAL FROM THE CIRCUIT COURT, NEW MADRID COUNTY, JOSEPH H. ALLEN, J.

Edward F. Sharp and Harry H. Bock, of New Madrid, for appellant.

Harold D. Jones and Jones Batson, of New Madrid, for respondent.

BLAIR, Judge.

This is an unlawful detainer suit, filed in the Magistrate Court of New Madrid County, by plaintiff, now appellant, against defendant, now respondent. The case went to the circuit court of that county, and was there tried without a jury on April 7, 1952. Plaintiff claimed that he had the legal right to possession of about 118 acres of land in that county, with damages and monthly rents and profits. Plaintiff was unsuccessful in the circuit court and has appealed. The time for the preparation and filing of a transcript was extended.

The right of plaintiff to possession of the land described depended upon the agreements of defendant and plaintiff with Charles Friborg, formerly the owner of said land. Defendant contended that in May, 1951, he secured a 5-year lease on said land. Plaintiff contended that defendant's right of possession thereto expired on December 31, 1951, the date of the expiration of his first lease.

It seems that creditors of Friborg, former owner of the land, were threatening action against him and plaintiff testified that he paid Friborg $12,000 for the land in June, 1952; and Friborg gave plaintiff a note for $15,000 to protect the latter from the enforcement of claims of others.

Friborg had originally given defendant a lease on said land, expiring on December 31, 1951. Plaintiff claimed that such lease had expired when the premises were transferred to him by Friborg in June, 1952, and that defendant was then and there not rightfully in possession of the tract of land described in the petition.

The trouble was that on May 13, 1951, Friborg and wife, then undisputed owners of the land, had executed a lease of the premises to defendant, expiring on the last day of December, 1955. On June 23, 1952, plaintiff received a warranty deed to the premises from Friborg and wife, and assumed that defendant was then in possession under his lease of February 13, 1951, expiring by its terms, on the last day of December, 1951.

By the deed of June 23, 1952, Friborg warranted the plaintiff that he and his wife were lawfully seized of an indefeasible estate in the premises. Plaintiff did not then ask defendant in what manner or how he was holding possession of the premises after December 31, 1951. Possibly he did not learn of the execution of the lease of May 15, 1951, from Friborg and wife to defendant, expiring the last day of December, 1955. Defendant was not wrongfully withholding possession of said premises without force on January 2, 1952, when this suit was begun. The trier of the facts had the right to find that on January 2, 1952, defendant was holding possession of the premises under the lease of May, 1951. The trial court properly found that defendant had the right of possession when the lawsuit was filed.

It is useless for us to discuss the cases cited or the claimed errors of the trial court in the admission or exclusion of testimony or in the giving or refusal of instructions.

Under the testimony in this case, when the suit was filed, plaintiff had the title, but did not have the right to possession of the property described in the petition. Not only must the judgment of the Circuit Court of New Madrid County be affirmed, but the Clerk of that Court is directed to enter a judgment for defendant.

It is so ordered.

VANDEVENTER, P. J., and McDOWELL, J., concur.